Common use of Merger, Consolidation or Sale Clause in Contracts

Merger, Consolidation or Sale. The Company and each of the Guarantors may consolidate with, or sell, lease or convey all or substantially all of the Company’s or its assets to, or merge with or into, any other entity, provided that the following conditions are met: (a) the Company or such Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than the Company or such Guarantor, as the case may be) formed by or resulting from any consolidation or merger or which shall have received the transfer of assets shall be domiciled in the United States, any state thereof or the District of Columbia and in the case of the Company shall expressly assume by supplemental indenture payment of the principal of and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture or, in the case of such Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such Guarantor in the Indenture and the Note Guarantee, as the case may be; (b) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) an Officer’s Certificate and Opinion of Counsel covering these conditions shall be delivered to the Trustee. In the event of any transaction described in and complying with the conditions listed in this Section 6.3 in which the Company and/or any Guarantor are not the continuing entity, the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Company and/or such Guarantor, and the Company and/or such Guarantor shall be discharged from its or their obligations under the Notes and the Indenture.

Merger, Consolidation or Sale. (a) The Company and each of the Guarantors any Parent Guarantor may consolidate with, or sell, lease or convey all or substantially all of the Company’s or its respective assets to, or merge with or into, any other entity, provided that the following conditions are met: (a1) the Company or such any Parent Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than the Company or such Parent Guarantor, as the case may be) formed by or resulting from any consolidation or merger or which shall have received the transfer of assets shall be domiciled in the United States, any state thereof or the District of Columbia and and, in the case of the Company Company, shall expressly assume by supplemental indenture payment of the principal of and premium, if any, and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture or, in the case of such any Parent Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s Note its Guarantee of the Notes and the due and punctual performance and observance of all of the covenants and conditions of such a Parent Guarantor in the Indenture and the Note Guarantee, as the case may be; (b2) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c3) an Officer’s Officers’ Certificate and Opinion of Counsel covering these each stating that the conditions precedent relating to such supplemental indenture have been met, and such supplemental indenture is permitted under the Indenture shall be delivered to the Trustee. Notwithstanding Section 6.3(a) above, any Subsidiary of any Parent Guarantor (including any such Subsidiary that is a Parent Guarantor, but other than the Company) may consolidate with, merge into or transfer all or part of its properties to such Parent Guarantor and neither an Officers’ Certificate nor an Opinion of Counsel shall be required to be delivered. In the event of any transaction described in and complying with the conditions listed in the immediately preceding paragraphs of this Section 6.3 6.3(a), but not a lease, in which the Company and/or any Parent Guarantor are is not the continuing entity, the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Company and/or such Parent Guarantor, as the case may be, and the Company and/or such Guarantor Parent Guarantor, as the case may be, shall be discharged from its or their obligations under the Indenture and the Notes or the Guarantee, as applicable. (b) Each Subsidiary Guarantor may consolidate with, or sell, lease or convey all or substantially all of such Subsidiary Guarantor’s respective assets to, or merge with or into, any other entity, provided that the following conditions are met: (1) such Subsidiary Guarantor shall be the continuing entity, or the successor entity (if other than such Subsidiary Guarantor) formed by or resulting from any consolidation or merger or which shall have received the transfer of assets shall be domiciled in the United States, any state thereof or the District of Columbia and shall expressly assume by supplemental indenture the payment of all amounts due under its Guarantee of the Notes and the due and punctual performance and observance of all of the covenants and conditions of such Subsidiary Guarantor in the Indenture and the Guarantee, as the case may be; provided, that the foregoing requirement will not apply in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety to another person (other than to a Parent Guarantor or an affiliate of such Parent Guarantor), whether through a merger, consolidation or sale of capital stock or has sold, leased or conveyed all or substantially all of its assets or (y) that, as a result of the disposition of all or a portion of its capital stock, ceases to be a Subsidiary; (2) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (3) an Officers’ Certificate and Opinion of Counsel each stating that the conditions precedent relating to such supplemental indenture have been met, and such supplemental indenture is permitted under the Indenture shall be delivered to the Trustee. Notwithstanding Section 6.3(b) above, any Subsidiary of any Subsidiary Guarantor (including any such Subsidiary that is a Subsidiary Guarantor) may consolidate with, merge into or transfer all or part of its properties to such Subsidiary Guarantor and neither an Officers’ Certificate nor an Opinion of Counsel shall be required to be delivered. In the event of any transaction described in and complying with the conditions listed in the immediately preceding paragraphs of this Section 6.3(b), but not a lease, in which such Subsidiary Guarantor is not the continuing entity, the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of such Subsidiary Guarantor, and such Subsidiary Guarantor shall be discharged from its obligations under its Guarantee and the Indenture. (c) This Section 6.3 shall not apply to: (1) a merger, consolidation, sale, assignment, transfer, conveyance or other disposition of assets between or among any Parent Guarantor, the Company or any Subsidiary Guarantor; provided, however that the foregoing clause shall not apply to any merger, consolidation, sale, assignment, transfer, conveyance or other disposition of assets involving the Company where the Company is not the continuing entity or the successor entity; or (2) a merger between any Parent Guarantor or any of its Subsidiaries, respectively, and an affiliate of such Parent Guarantor or such Subsidiary incorporated or formed solely for the purpose of reincorporating or reorganizing the Parent Guarantor or such Subsidiary in another state of the United States.

Merger, Consolidation or Sale. The Company and each of the Guarantors Guarantor may consolidate with, or sell, lease or convey all or substantially all of the Company’s or its the Guarantor’s respective assets to, or merge with or into, any other entity, provided that the following conditions are met: (a) the Company or such the Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than the Company or such the Guarantor, as the case may be) formed by or resulting from any consolidation or merger or which shall have received the transfer of assets shall be domiciled in the United States, any state thereof or the District of Columbia and and, in the case of the Company Company, shall expressly assume by supplemental indenture payment of the principal of and premium, if any, and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture or, or in the case of such the Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s the Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such the Guarantor in the Indenture and the Note Guarantee, as the case may be; (b) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) an Officer’s Certificate and Opinion of Counsel covering these Counsel, each stating that the conditions precedent relating to such supplemental indenture have been met, such supplemental indenture is permitted under the indenture and such supplemental indenture is the valid legal and binding obligation of the surviving entity, shall be delivered to the Trustee. In the event of any transaction described in and complying with the conditions listed in this Section 6.3 6.3, but not a lease, in which the Company and/or any the Guarantor are not the continuing entity, the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Company and/or such the Guarantor, and the Company and/or such the Guarantor shall be discharged from its or their obligations under the Notes and the Indenture.

Merger, Consolidation or Sale. The Company and each of the Guarantors Guarantor may consolidate with, or sell, lease or convey all or substantially all of the Company’s or its the Guarantor’s respective assets to, or merge with or into, any other entity, provided that the following conditions are met: (a) the Company or such the Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than the Company or such the Guarantor, as the case may be) formed by or resulting from any consolidation or merger or which shall have received the transfer of assets shall be domiciled in the United States, any state thereof or the District of Columbia and in the case of the Company shall expressly assume by supplemental indenture payment of the principal of and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture or, or in the case of such the Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s the Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such the Guarantor in the Indenture and the Note Guarantee, as the case may be; (b) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) an Officer’s Certificate and Opinion of Counsel covering these conditions shall be delivered to the Trustee. In the event of any transaction described in and complying with the conditions listed in this Section 6.3 in which the Company and/or any the Guarantor are not the continuing entity, the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Company and/or such the Guarantor, and the Company and/or such the Guarantor shall be discharged from its or their obligations under the Notes and the Indenture.

Merger, Consolidation or Sale. The Company and each of the Guarantors Guarantor may consolidate with, or sell, lease or convey all or substantially all of the Company’s or its the Guarantor’s respective assets to, or merge with or into, any other entity, provided that the following conditions are met: (a) the Company or such the Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than the Company or such the Guarantor, as the case may be) formed by or resulting from any consolidation or merger or which shall have received the transfer of assets shall be domiciled in the United States, any state thereof or the District of Columbia and and, in the case of the Company Company, shall expressly assume by supplemental indenture payment of the principal of and premium, if any, and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture or, or in the case of such the Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s the Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such the Guarantor in the Indenture and the Note Guarantee, as the case may be; (b) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) an Officer’s Certificate and Opinion of Counsel covering these Counsel, each stating that the conditions precedent relating to such supplemental indenture have been met, such supplemental indenture is permitted under the indenture and such supplemental indenture is the valid legal and binding obligation of the surviving entity, shall be delivered to the Trustee. In the event of any transaction described in and complying with the conditions listed in this Section 6.3 6.4, but not a lease, in which the Company and/or any the Guarantor are not the continuing entity, the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Company and/or such the Guarantor, and the Company and/or such the Guarantor shall be discharged from its or their respective obligations under the Notes and the Indenture.

Merger, Consolidation or Sale. (a) The Company and each of the Guarantors Parent Guarantor may merge or consolidate withwith or into, or sell, assign, convey, transfer or lease or convey all or substantially all of the Company’s or its the Parent Guarantor’s respective property and assets to, or merge with or into, any other entity, provided that the following conditions are met: (a1) the Company or such the Parent Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than the Company or such the Parent Guarantor, as the case may be) formed by or resulting from any merger or consolidation or merger or which shall have received the sale, assignment, conveyance, transfer or lease of property and assets shall be domiciled in the United States, any state thereof or the District of Columbia and and, in the case of the Company Company, shall expressly assume by supplemental indenture payment of the principal of and premium, if any, and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture or, or in the case of such the Parent Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s the Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such the Parent Guarantor in the Indenture and the Note Guarantee, as the case may be; (b2) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c3) an Officer’s Certificate and Opinion of Counsel covering these conditions shall be delivered to the Trustee. , each stating that such transaction and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the Indenture and that all conditions precedent provided for relating to such transaction have been complied with. (b) Notwithstanding Section 6.8(a)(3) above, any Subsidiary of the Parent Guarantor (other than the Company) may consolidate with, merge into or transfer all or part of its properties to the Parent Guarantor and neither an Officers’ Certificate nor an Opinion of Counsel shall be required to be delivered. (c) In the event of any transaction described in and complying with the conditions listed in this Section 6.3 6.8, but not a lease, in which the Company and/or any the Parent Guarantor are not the continuing entity, the successor person Person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Company and/or such or the Parent Guarantor, as the case may be, and (except in the case of a lease) the Company and/or such the Parent Guarantor shall be discharged from its or their obligations obligations, as the case may be, under the Notes and the Indenture. (d) Each Subsidiary Guarantor (if any) may merge or consolidate with or into, or sell, assign, convey, transfer or lease all or substantially all of such Subsidiary Guarantor’s respective property and assets to any other entity, provided that the following conditions are met: (1) such Subsidiary Guarantor shall be the continuing entity, or the successor entity (if other than such Subsidiary Guarantor) formed by or resulting from any consolidation or merger or which shall have received the sale, assignment, conveyance, transfer or lease of property and assets shall be domiciled in the United States, any state thereof or the District of Columbia and shall expressly assume by supplemental indenture the payment of all amounts due under its Guarantee of the Notes and the due and punctual performance and observance of all of the covenants and conditions of such Subsidiary Guarantor in the Indenture and the Guarantee, as the case may be; provided, that the foregoing requirement will not apply in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety to another Person (other than to the Parent Guarantor or an affiliate of the Parent Guarantor), whether through a merger, consolidation or sale of capital stock or has sold, assigned, conveyed, transferred or leased all or substantially all of its assets or (y) that, as a result of the disposition of all or a portion of its capital stock, ceases to be a Subsidiary; (2) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (3) an Officers’ Certificate and Opinion of Counsel each stating that the conditions precedent relating to such supplemental indenture have been met, and such supplemental indenture is permitted under the Indenture shall be delivered to the Trustee. (e) Notwithstanding Section 6.8(d)(3) above, any Subsidiary of any Subsidiary Guarantor (including any such Subsidiary that is a Subsidiary Guarantor) may consolidate with, merge into or transfer all or part of its properties to such Subsidiary Guarantor and neither an Officers’ Certificate nor an Opinion of Counsel shall be required to be delivered. (f) This Section 6.8 shall not apply to: (1) a merger, consolidation, sale, assignment, conveyance, transfer, lease or other disposition of assets between or among the Parent Guarantor, the Company or any Subsidiary Guarantor; provided, however that the foregoing clause shall not apply to any merger, consolidation, sale, assignment, conveyance, transfer, lease or other disposition of assets involving the Company where the Company is not the continuing entity or the successor entity; or (2) a merger between the Parent Guarantor or any of its Subsidiaries, respectively, and an affiliate of the Parent Guarantor or such Subsidiary incorporated or formed solely for the purpose of reincorporating or reorganizing the Parent Guarantor or such Subsidiary in another state of the United States.

Merger, Consolidation or Sale. of All or Substantially ----------------------------------------------------- All Assets of the Company. The Company and each of shall not consolidate or merge with or ------------------------- into (whether or not the Guarantors may consolidate withCompany is the surviving corporation), or sell, lease assign, transfer, lease, convey or convey otherwise dispose of all or substantially all of the Company’s its properties or its assets toin one or more related transactions, or merge with or into, any other entity, provided that the following conditions are metto another Person unless: (ai) the Company or such Guarantor, as is the case may be, shall be the continuing entity, surviving corporation or the successor entity Person formed by or surviving any such consolidation or merger (if other than the Company Company) or to which such Guarantorsale, as the case may be) formed by assignment, transfer, lease, conveyance or resulting from any consolidation or merger or which other disposition shall have received been made is a corporation organized or existing under the transfer laws of assets shall be domiciled in the United States, any state thereof or the District of Columbia Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction no Default or Event of Default exists; (iv) except in the case of a merger of the Company shall expressly assume by supplemental indenture payment with or into a Wholly Owned Restricted Subsidiary of the principal Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made shall, at the time of such transaction and interest on all after giving pro forma effect thereto as if such --------- transaction had occurred at the beginning of the Notes and applicable four-quarter period, either (x) be permitted to Incur at least $1.00 of additional Debt pursuant to the due and punctual performance and observance of all Consolidated Coverage Ratio test set forth in Section 4.03(a) or (y) have a Consolidated Coverage Ratio at least equal to the Consolidated Coverage Ratio of the covenants and conditions in Company for such four-quarter reference period; and (v) the Indenture or, in Company or the case of such Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such Guarantor in the Indenture and the Note Guaranteesurviving corporation, as the case may be; , shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. Notwithstanding the foregoing clauses (iii) and (iv) above, (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company, (b) immediately after giving effect to the transaction, no Event Company may merge with an Affiliate incorporated solely for the purpose of Default under reincorporating the Indenture, Company in another jurisdiction and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) an Officer’s Certificate and Opinion of Counsel covering these conditions shall be delivered to the Trustee. In the event of any transaction described in and complying with the conditions listed in this Section 6.3 in which the Company and/or any Guarantor are not the continuing entity, the successor person formed or remaining shall succeed, may merge with and be substituted for, and may exercise every right and power of the Company and/or such Guarantor, and the Company and/or such Guarantor shall be discharged from its or their obligations under the Notes and the Indentureinto Harborside.

Merger, Consolidation or Sale. OF ALL OR SUBSTANTIALLY ALL ASSETS The Company and each of shall not consolidate or merge with or into or wind up into (whether or not the Guarantors may consolidate withCompany is the surviving corporation), or sell, lease assign, transfer, lease, convey or convey otherwise dispose of all or substantially all of the Company’s its properties or its assets in one or more related transactions to, or merge with or into, any other entity, provided that the following conditions are metPerson unless: (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Company or such GuarantorPerson, as the case may be, shall be being herein called the continuing entity, or "Successor Company"); (ii) the successor entity Successor Company (if other than the Company or such Guarantor, as Company) expressly assumes all the case may be) formed by or resulting from any consolidation or merger or which shall have received the transfer of assets shall be domiciled in the United States, any state thereof or the District of Columbia and in the case obligations of the Company shall expressly assume by supplemental indenture payment of the principal of and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture or, in the case of such Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such Guarantor in the this Indenture and the Note Guarantee, as Notes pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the case may beTrustee; (biii) immediately after such transaction no Default or Event of Default exists; (iv) immediately after giving pro forma effect to the such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Net Debt to Pro Forma Consolidated Cash Flow test set forth in the first sentence of Section 4.12 or (B) the ratio of Total Net Debt to Pro Forma Consolidated Cash Flow for the Successor Company and its Restricted Subsidiaries would be no Event of Default under greater than such ratio for the IndentureCompany and its Restricted Subsidiaries immediately prior to such transaction; (v) each Subsidiary Guarantor, and no event whichif any, after notice or unless it is the lapse of time, or both, would become an Event of Defaultother party to the transactions described above, shall have occurred by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person's obligations under this Indenture and be continuingthe Notes; and (cvi) an Officer’s Certificate and Opinion of Counsel covering these conditions the Company shall be have delivered to the TrusteeTrustee an Officers' Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. In the event Notwithstanding clause (iv) of any transaction described in and complying with the conditions listed in this Section 6.3 in which 5.01, (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company and/or any Guarantor are not and (b) the continuing entity, Company may merge with an Affiliate incorporated solely for the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power purpose of reincorporating the Company in another State of the United States so long as the amount of Indebtedness of the Company and/or such Guarantor, and the Company and/or such Guarantor shall be discharged from its or their obligations under the Notes and the IndentureRestricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale. OF ALL OR SUBSTANTIALLY ALL ASSETS. The Company and each of shall not consolidate or merge with or into (whether or not the Guarantors may consolidate withCompany is the surviving entity), or sell, lease assign, transfer, lease, convey or convey otherwise dispose of all or substantially all of the Company’s its properties or its assets in one or more related transactions to, or merge with or into, any other entity, provided that the following conditions are met: another Person unless (ai) the Company or such Guarantor, as is the case may be, shall be the continuing entity, surviving corporation or the successor entity Person formed by or surviving any such consolidation or merger (if other than the Company Company) or to which such Guarantorsale, as the case may be) formed by assignment, transfer, lease, conveyance or resulting from any consolidation or merger or which other disposition shall have received been made is a corporation organized or existing under the transfer laws of assets shall be domiciled in the United States, any state thereof or the District of Columbia and in Columbia; (ii) the case Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made assumes all the obligations of the Company shall expressly assume by supplemental indenture payment of the principal of and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture or, in the case of such Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such Guarantor in the Indenture and the Note Guarantee, as the case may be; (b) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) an Officer’s Certificate and Opinion of Counsel covering these conditions shall be delivered to the Trustee. In the event of any transaction described in and complying with the conditions listed in this Section 6.3 in which the Company and/or any Guarantor are not the continuing entity, the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Company and/or such Guarantor, and the Company and/or such Guarantor shall be discharged from its or their obligations under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the IndentureTrustee; (iii) immediately after such transaction, no Default or Event of Default exists; (iv) the Company or the Person formed by or surviving any such consolidation or merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made will, at the time of such transaction after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.12 hereof and (v) each Guarantor, if any, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person's obligations under this Indenture and the Notes. The foregoing clause (iv) will not prohibit (a) a 58 68 merger between the Company and a Wholly Owned Subsidiary of a Wholly Owned Subsidiary of Holdings created for the purpose of holding the Capital Stock of the Company, (b) a merger between the Company and a Wholly Owned Restricted Subsidiary or (c) a merger between the Company and an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as, in each case, the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale. of All or Substantially All Assets. The Company and each will not, in any transaction or series of the Guarantors may related transactions, consolidate with, with or merge into any Person or sell, assign, transfer, lease or otherwise convey all or substantially all of the Company’s or its properties and assets toto any Person, or merge with or into, any other entity, provided that the following conditions are metunless: (a1) either the Company or such Guarantor, as the case may be, shall will be the continuing entityPerson (in the case of a merger), or the successor entity Person (if other than the Company or such Guarantor, as the case may beCompany) formed by or resulting from any such consolidation or merger into which the Company is merged or which shall have received acquires by sale, assignment, transfer, lease or other conveyance all or substantially all the transfer properties and assets of assets shall the Company will be domiciled in a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia and will expressly assume, by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed by such successor corporation and delivered to the Trustee, in form satisfactory to the case of Trustee, the Company shall expressly assume by supplemental indenture due and punctual payment of the principal of of, and interest on on, all of the Outstanding Subordinated Notes and the due and punctual performance and observance of all of the covenants and conditions every obligation in the Indenture or, in the case of such Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such Guarantor in the this Indenture and the Note Guarantee, as Outstanding Subordinated Notes on the case may bepart of the Company to be performed or observed; (b2) immediately after giving effect to such transaction and treating any indebtedness that becomes an obligation of the Company or any Subsidiary as a result of that transaction as having been incurred by the Company or any Subsidiary at the time of the transaction, no Event of Default under the IndentureDefault, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall will have occurred and be continuing; and (c3) an Officer’s Certificate and Opinion of Counsel covering these conditions shall be either the Company or the successor Person will have delivered to the TrusteeTrustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease or other conveyance and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article VII and that all conditions precedent herein provided for relating to such transaction have been complied with. In For purposes of the event foregoing, any sale, assignment, transfer, lease or other conveyance of all or any transaction described in of the properties and complying with the conditions listed in this Section 6.3 in which the Company and/or any Guarantor are not the continuing entity, the successor person formed assets of one or remaining shall succeed, and be substituted for, and may exercise every right and power more Subsidiaries of the Company and/or such Guarantor, and (other than to the Company and/or or another Subsidiary), which, if such Guarantor shall properties and assets were directly owned by the Company, would constitute all or substantially all of the Company’s properties and assets, will be discharged from its deemed to be the transfer of all or their obligations under substantially all of the Notes properties and assets of the IndentureCompany.

Merger, Consolidation or Sale. of All or Substantially All --------------------------------------------------------- Assets of the Company. The Company and each of shall not consolidate or merge with or into --------------------- (whether or not the Guarantors may consolidate withCompany is the surviving corporation), or sell, lease assign, transfer, lease, convey or convey otherwise dispose of all or substantially all of the Company’s its properties or its assets toin one or more related transactions, or merge with or into, any other entity, provided that the following conditions are metto another Person unless: (ai) the Company or such Guarantor, as is the case may be, shall be the continuing entity, surviving corporation or the successor entity Person formed by or surviving any such consolidation or merger (if other than the Company Company) or to which such Guarantorsale, as the case may be) formed by assignment, transfer, lease, conveyance or resulting from any consolidation or merger or which other disposition shall have received been made is a corporation organized or existing under the transfer laws of assets shall be domiciled in the United States, any state thereof or the District of Columbia Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction no Default or Event of Default exists; (iv) except in the case of a merger of the Company shall expressly assume by supplemental indenture payment with or into a Wholly Owned Restricted Subsidiary of the principal Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made shall, at the time of such transaction and interest on all after giving pro forma effect thereto as if such --------- transaction had occurred at the beginning of the Notes and applicable four-quarter period, either (x) be permitted to Incur at least $1.00 of additional Debt pursuant to the due and punctual performance and observance of all Consolidated Coverage Ratio test set forth in Section 4.03(a) or (y) have a Consolidated Coverage Ratio at least equal to the Consolidated Coverage Ratio of the covenants and conditions in Company for such four-quarter reference period; and (v) the Indenture or, in Company or the case of such Guarantor, shall expressly assume by supplemental indenture the payment of all amounts due under such Guarantor’s Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions of such Guarantor in the Indenture and the Note Guaranteesurviving corporation, as the case may be; , shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. Notwithstanding the foregoing clauses (iii) and (iv) above, (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company and (b) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and (c) an Officer’s Certificate and Opinion of Counsel covering these conditions shall be delivered to the Trustee. In the event of any transaction described in and complying with the conditions listed in this Section 6.3 in which the Company and/or any Guarantor are not may merge with an Affiliate incorporated solely for the continuing entity, the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power purpose of reincorporating the Company and/or such Guarantor, and the Company and/or such Guarantor shall be discharged from its or their obligations under the Notes and the Indenturein another jurisdiction.